The challenge in this Writ Petition is to the order of the
Central Administrative Tribunal dated 3-8-1998 made in
O.A.No.387/96, in
and by which, the Tribunal issued a direction to the petitioner to apply
the liberalised pension scheme in the
case of the deceased applicant by
following of the necessary formalities in accordance with the Circular
dated 23-7-1974 subject
to the condition that the legal heirs of the
deceased applicant, namely, the respondents 2 to 5 herein refund the
amount
received by the deceased applicant by way of government
contribution as well as special contribution to provident
fund.

2. While granting the above said relief, the Tribunal mainly
relied on a judgment of the Honourable Supreme Court reported
in 1997 (1)
SCC 514 (UNION OF INDIA AND OTHERS versus D.R.R.SASTRI). In the above
stated judgment of the
Honourable Supreme Court, a direction came to be
issued to the Railways in respect of an employee who happened to be in
the
service of the Railways on 1-1-1973, to whom the circular dated
23-7-1994 was applicable, who came forward to exercise the
option only in
the year 1993, which was turned down by the Railways and when the said
rejection was challenged by him before the
Tribunal, the challenge was
accepted, whereby, the Railways was directed to accept the option
exercised by the retiree,
even though, the option was exercised nearly
after 18 years. The direction of the Tribunal was upheld by the
Honourable
Supreme Court on the ground that the Railways granted a
similar benefit to another employee who also retired in the year
1973,
but who was granted the relief in the year 1994. In fact, a contention
was raised before the Honourable Supreme Court
that in view of the
Constitutional Bench decision of the Supreme Court Court reported in
1990(4) SCC 207 (KRISHENA KUMAR versus
UNION OF INDIA AND OTHERS, ETC.,),
the direction of the Tribunal cannot be sustained. However, the
Honourable
Supreme Court, in view of the special facts involved in that
case, declined to interfere with the order of the Tribunal.

3. Mr.V.Radhakrishnan, learned counsel appearing for the
petitioner contended that the issue concerning the grant
of relief was
dealt with in extenso in the Constitutional Bench judgment of the
Honourable Supreme Court reported in
1990(4) SCC 207, wherein the
Honourable Supreme Court, while considering the various orders of the
Railways, right from
the year 1957 till the year 1987, in and by which,
at different point of time, the Railways came forward to extend the
benefit
to its employees who opted to accept the provident fund benefits
as their service benefit, to switch over to the pensionary benefits
for
different reasons.

4. The Circular dated 23-7-1994 was one such order which was
considered by the Honourable Supreme Court and while
dealing with the
said Circular, the position relating to the same was noted as under :
(viii) Pension Option dated
July 23, 1974.
This option was based on similar orders issued by Ministry of
Finance. The rationale behind this option
was that the recommendations
of the 3rd Pay Commission became effective from January 1, 1973 but pay
structure of all
employees who were in service on January 1, 1973 got
altered through orders issued piecemeal from time to time. There were
liberalisations in the pension scheme also in the form of increase in the
amount of gratuity as also introduction of the concept
of Dearness Relief
made available to the pensioners. This option was made available to all
employees who were in service on January
1, 1973. Employees who had
retired earlier did not get affected in any way by the recommendations of
the 3rd Pay Commission
and were accordingly not given this option to come
over to Pension Scheme. This option was available up to January 22,
1975,
a period of 6 months.

The option given vide letter of July 23, 1974 was extended from
time to time till December 31, 1978. The reason why
this extension had
to be allowed was that the revised pay scales recommended by the Pay
Commission for many of
the categories could not be finalised and
notified. Till such time, the revised pay scale admissible to each
category
was made known, it was impossible for the concerned staff to
assess the benefit admissible for opting for the revised scale
as also
for the pension option. The pension option had therefore to be extended
from time to time in this manner.

The letters authorising extension of the date of option were not
very clearly worded with the result that the pension
option during the
periods of extension was granted even to those who had retired before
such extension became admissible but
who were in service on January 1 ,
1973. The clarification was accordingly issued to all the Railways
stating that
the subsequent orders extending the date of option were
applicable to serving employees only, but the cases already decided
otherwise may be treated as closed and need not be opened again.
It was subsequently represented by the organised labour
that the
options actually exercised up to December 31, 1978 should be treated
valid even though such cases may not have
been decided by that date.
This was agreed to and orders issued accordingly."
and in para 14 of the said order, the Honourable
Supreme Court was
pleased to observe as under:

"14. The learned Additional Solicitor General states that each
option was given for stated reasons related to the options.
On each
occasion, time was given not only to the persons in service on the the
date of Railway Board's letter but also to
persons who were in service
till the stated anterior date but had retired in the meantime. The
period of validity of option
was extended in all the options except
Nos.3rd, 4th, 5th and 7th. We find the statements to have been
substantiated
by facts. The cut-off dates were not arbitrarily chosen
but had nexus with the purpose for which the option was given."

5. The learned counsel also brought to our notice the subsequent
Judgment of the Honourable Supreme Court reported in
1998(9) SCC 721 (
UNION OF INDIA AND OTHERS versus KAILASH), where again, when a similar
belated claim was countenanced
by the Central Administrative Tribunal of
Calcutta Bench, and when the same was challenged by the Union of India
before
the Honourable Supreme Court, the respondents in that case sought
reliance upon the judgment of the Honourable Supreme Court
reported in
1997(1) SCC 514 (UNION OF INDIA & OTHERS versus D.R.R. SASTRI), to
sustain the order of the Tribunal.
However, the Honourable Supreme Court
was pleased to hold that when the issue was clearly covered by the
Constitutional Bench
decision of the Honourable Supreme Court reported in
1990(4) SCC 207 (KRISHENA KUMAR versus UNION OF INDIA AND OTHERS, ETC.,),
the Tribunal was wrong in taking a contrary view by relying upon some
other decision which was decided on its own facts.

6. The learned counsel therefore contended that the order of the
Tribunal in the case on hand is also therefore liable to
be set aside in
the light of the decision of the Constitutional Bench of the Honourable
Supreme Court reported in 1990(4) SCC
207 (KRISHENA KUMAR versus UNION OF
INDIA AND OTHERS, ETC.,). We are in full agreement with the said
submission
of the learned counsel for the petitioner. The subsequent
judgment of the Honourable Supreme Court reported in 1998(9) SCC
721
(UNION OF INDIA & OTHERS versus KAILASH), is also very relevant for the
disposal of this Writ Petition.
The said judgment is extracted in full
which reads as under:

"1.Leave granted. Heard learned counsel for the parties.
Learned counsel for the appellants submitted that the
point raised in
this appeal is clearly covered by the decision of this Court in Krishna
Kumar V.Union of India (1990(4) SCC
207) and the Tribunal was wrong in
taking a contrary view relying upon the decision of this Court in R.
Subramaniam v. Chief
Personnel Officer, Central Railway, Ministry of
Railways (1996 (10) SCC 72). In R.Subramaniam what had happened was that
benefit of the order passed in his favour was not given to him even
though SLP filed by the Union of India against
it was dismissed and the
review application filed by it thereafter was also dismissed. R.
Subramaniam therefore filed
a writ petition which came to be allowed.
That case was thus decided on its own facts. The Tribunal was therefore
not right
in deciding the respondent's application in his favour by
following that decision. Releasing this difficulty in this way,
learned
counsel for the respondent tried to support the order of the Tribunal
with the decision of this Court in Union of
India V. D.R.R. Sastri
(1997 (1) SCC 514). That case also was decided on facts special to it.
This Court refused to interfere
with the order of the Tribunal because
the Union of India had failed to explain why the benefit, which was given
to K.R.Kasturi was
not given to D.R.R.Sastri even though his case was
similar. Obviously the two-Judge Bench would not have intended to take a
view contrary to what was held by the Constitution Bench of five Judges
in Krishena Kumar case (1990(4) SCC 207). Nor would it
have intended to
lay down that because a wrong benefit is given to one, similar benefit is
required to be given to others similarly
situated as denial of the same
would amount to discrimination violative of Article 14 of the
Constitution. Therefore,
D.R.R.Sastri case has to be regarded as a case
decided on its special facts.

2. Following the decision in Krishena Kumar case, we allow this
appeal and set aside the order passed by the Central
Administrative
Tribunal, Calcutta Bench with the result that the application filed by
the respondent before the Tribunal stands
dismissed."

7. On a reading of the Constitutional Bench decision of the
Honourable Supreme Court, it is clear that the date fixed
in each of the
Notification for exercise of the option for the employees to switch over
to pension scheme was to be adhered to
and that the cut-off dates were
not arbitrarily chosen but had nexus with the purpose for which the
option was given. It
was also made clear that the period of validity of
the option was extended on certain circumstances for stated reasons.
When
the position was stated in such categoric terms by the Hon'ble
Supreme Court with reference to the various circulars which
inter alia
included the circular dated 23-7-1974 there is no gain saying that merely
because in a different case, namely, in the
one reported in 1997(1) SCC
514 (UNION OF INDIA & OTHERS versus D.R.R.SASTRI) in view of the special
facts involved in that
case, the Honourable Supreme Court was pleased to
confirm the order of the Tribunal which chose to grant the relief, on the
basis
of the said decision, the employees who failed to exercise their
option within the stipulated time and who came forward to exercise
their
option at a highly belated point of time, such option should also be
accepted irrespective of the belated nature of exercise
of such option
and grant the relief in their favour. As interpreted by the Honourable
Supreme Court in the subsequent decision
reported in 1998(9) SCC 721
(UNION OF INDIA AND OTHERS versus KAILASH) in the light of the decision
of
the Constitutional Bench of the Honourable Supreme Court reported in
1990(4) SCC 207, there is no scope for entertaining the
claim of the
deceased applicant in the case on hand as well who came forward to
exercise the option after a delay of
nearly 18 years. We are therefore
unable to sustain the order of the Tribunal impugned in this Writ
Petition.

In the result, the Writ Petition is, therefore, allowed. The
order impugned in this Writ Petition is hereby set aside.
No costs.
Consequently, W.M.P. is closed.

(R.J.B.,J.) (F.M.I.K.,J.)

22-03-2002

suk

Index: Yes

Web site: Yes

Copy to

1. The Secretary,

Union of India,

Ministry of Railways,

Rail Bhavan,

New Delhi-110 001.

2. The Chairman,

The Railway Board,

Government of India,

Rail Bhavan,

New Delhi-110 001.

3. The General Manager,

Southern Railway,

Park Town,

Chennai-600 003.

4. The Registrar,

The Central Administrative Tribunal

Chennai Bench,

Chennai-600 104.

R.JAYASIMHA BABU, J.

F.M.IBRAHIM KALIFULLA, J.

ORDER IN

W.P.NO.18256 OF 1998

22-03-2002

Copyright

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